It brings to mind the question of why Nintendo would want to shut down a public game tournament, and the depressing thought that they answer is probably "because we can".

There's a lot of ways where if you don't defend your intellectual property, you eventually lose the rights to that intellectual property. My guess is that it's related to something like that, and they don't want to lose control of the Smash Brothers IP.

I understand the legal justifications... but just because they can doesn't mean they should. A video game tournament is a great thing for a company, as it advertises their title, and brings their fans together. If we had say a Smash Bros tournament, I (and others) would probably discuss Smash Bros U and Smash Bros 3DS, and perhaps trade friend codes and whatever not. This is good for Nintendo overall. Shutting down these things will 1- Make hardcore players mad 2- Promote other games that DO allow tournaments 3- Prevents the free advertising and publicity of a tournament 4- Prevents a gathering of dedicated players (I like to meet people who play the same games as myself).

There are very few conceivable reasons why a publisher would want to shut such events down. The costs outweighs the benefits (if any exisit!)

I don't see how they can shut down the whole tournament. Prevent anyone but the player from seeing the video screen, yes, but the whole tournament? That seems a bit much. While it wouldn't be possible if it was the only game being played, omitting one of many games from a live stream seems feasible, and you can still have running commentary on how people are doing.

It brings to mind the question of why Nintendo would want to shut down a public game tournament, and the depressing thought that they answer is probably "because we can".

There's a lot of ways where if you don't defend your intellectual property, you eventually lose the rights to that intellectual property. My guess is that it's related to something like that, and they don't want to lose control of the Smash Brothers IP.

What about arcade cabinets? These are unambiguously public performances based on the criteria explained in the article and the publisher's arguments, so did Nintendo explicitly grant performance rights to operators when they used to sell arcade cabinets? Did Capcom do the same?

This is a serious question and I haven't started to do my own research, but if they did not grant performance rights to operators back in the arcade days, then IMO they never really believed their own legal arguments.

I think the answer here is to define the playing of a video game as a new work.

Playing a video game requires the user playing the game to exercise skills and to create a new expression of the content that did not exist on the recorded media. Specifically, the player's actions (and the player character's corresponding actions on the screen) are completely the player's own performance. Therefore, playing the game is actually the creation of a new, derivative work.

Trying to control recordings and broadcasts of a person playing a game are a lot like Yamaha claiming the own a song I recorded because the song uses a synthesizer (with Copyrighted samples) to make all the sounds.

It's the same thing: like my song is a new work, which I legally own the Copyright to, playing a video game is a derivative work that is owned by the player, not by Nintendo or EA or whomever created the game.

Should the tournament broadcast the cut scenes? No. But I'm betting you could make a case that the gameplay itself could be fair use.

What about arcade cabinets? These are unambiguously public performances based on the criteria explained in the article and the publisher's arguments, so did Nintendo explicitly grant performance rights to operators when they used to sell arcade cabinets? Did Capcom do the same?

This is a serious question and I haven't started to do my own research, but if they did not grant performance rights to operators back in the arcade days, then IMO they never really believed their own legal arguments.

I believe that any arcade owner would have a case that "public performance" of an arcade cabinet is implicit in the sale to the arcade, even if it isn't explicit in the sales contract (which it might have been). In any case, if anyone ever had the gall to bring a case against their own customers, those customers would immediately start demanding such a clause before buying another cabinet.

Console games are pretty different in this regard, since they are intended to be played in private and have shrinkwrap EULAs to that effect..

What about arcade cabinets? These are unambiguously public performances based on the criteria explained in the article and the publisher's arguments, so did Nintendo explicitly grant performance rights to operators when they used to sell arcade cabinets? Did Capcom do the same?

This is a serious question and I haven't started to do my own research, but if they did not grant performance rights to operators back in the arcade days, then IMO they never really believed their own legal arguments.

Since the cabinet was designed solely for the "public performance" of a game, one would guess that a grant of rights for the purpose of using it in an arcade is implied.

Certainly, software makers today put clauses into their EULA's that prohibit pay for play. For example, back when Doom was the new thing, people were setting up play-by-the-hour arcades with 4 PC's set up for deathmatch battles. Id found out what was going on and basically said "you want to charge people to play our game, you got to pony up royalties."

And I totally agree with that. What I don't agree with is the idea that Id could restrict people from live-streaming their own game play, especially if it included commentary, discussion, reporting, or other added content.

If playing a game counts as a performance, then surely it also results in the creation of a derivative work, as every particular performance is a unique variation created by using the basic gameplay as a canvas.

Do video game makers explicitly license the right to create derivative works to end users, or has every session of every video game every played been a copyright violation?

Adding things like commentary, video shots of the humans involved, etc, would seem to necessarily wrap it in fair use as analysis, criticism, and/or derivative works.

Not that a small tournament possibly organized by unpaid volunteers would have the resources to defend such a suit anyway...

I actually asked about this, and while fair use *might* protect a stream of the event under some sort of live news/commentary exception, it probably couldn't be applied to the actual, in-person tournament itself, according to Methenitis.

Console games are pretty different in this regard, since they are intended to be played in private and have shrinkwrap EULAs to that effect..

IMO, Shrinkwrap EULA's should be illegal. Copyright and only Copyright should rule the sale of video games... unless the publisher wants to grant additional terms that aren't part of the standard first-sale doctrine.

If playing a game counts as a performance, then surely it also results in the creation of a derivative work, as every particular performance is a unique variation created by using the basic gameplay as a canvas.

Do video game makers explicitly license the right to create derivative works to end users, or has every session of every video game every played been a copyright violation?

Technically, yes, playing a game would be a "derivative work," just as improvising off sheet music in the privacy of your basement is. But neither becomes a legal issue until you share that derivative work with someone in a manner other than reasonable private use, such as a tournament or a public concert. At least that's my understanding.

Adding things like commentary, video shots of the humans involved, etc, would seem to necessarily wrap it in fair use as analysis, criticism, and/or derivative works.

Not that a small tournament possibly organized by unpaid volunteers would have the resources to defend such a suit anyway...

I actually asked about this, and while fair use *might* protect a stream of the event under some sort of live news/commentary exception, it probably couldn't be applied to the actual, in-person tournament itself, according to Methenitis.

My thinking is that actually playing the game is a new kind of performance and, in effect, a derivative work. After all, playing the game requires the player to demonstrate a certain level of skill and perform actions above and beyond a simple "press play." Certainly, a player's performance in a video game can make it a far different experience from one play to the next. That means the player's own input into the game must be part of the work. I find myself wondering if this theory has been tested in court yet, or if people are just relying on tangentially related cases.

Adding things like commentary, video shots of the humans involved, etc, would seem to necessarily wrap it in fair use as analysis, criticism, and/or derivative works.

Not that a small tournament possibly organized by unpaid volunteers would have the resources to defend such a suit anyway...

I actually asked about this, and while fair use *might* protect a stream of the event under some sort of live news/commentary exception, it probably couldn't be applied to the actual, in-person tournament itself, according to Methenitis.

The solution, then, is to conceal the players and the actual games off to one side and only put the modified stream up on the big screen?

As long as nobody pays any attention to the geeks behind the curtain.

Bleh. It just sounds like there's no good way to fix it other than just not bothering to do them. Or to omit Nintendo games from the schedule and leave a note that "This time slot intentionally left blank due to demands from Nintendo" or some other passive aggressive text.

Bleh. It just sounds like there's no good way to fix it other than just not bothering to do them. Or to omit Nintendo games from the schedule and leave a note that "This time slot intentionally left blank due to demands from Nintendo" or some other passive aggressive text.

We just need better Copyright laws... and it starts with "Guess what? You just SOLD something to someone. That means you can't control everything they do with it. So sorry. Go pound sand."

I'm getting so tired of customers having fewer and fewer rights with the stuff they paid good money for.

Trying to control recordings and broadcasts of a person playing a game are a lot like Yamaha claiming the own a song I recorded because the song uses a synthesizer (with Copyrighted samples) to make all the sounds.

Yamaha most likely could shut you down, if they didn't specifically license you to use their samples however you please. It's only by their grace you can freely make music with their artists' samples.

Adding things like commentary, video shots of the humans involved, etc, would seem to necessarily wrap it in fair use as analysis, criticism, and/or derivative works.

Not that a small tournament possibly organized by unpaid volunteers would have the resources to defend such a suit anyway...

Derivative work however implies that enough 'new' is added to overshadow the original work, as the original copyright owner still has the right to authorize derivative works. The concept of derivative work is mostly used, I believe, to assert it's own copyright independent of the original.

IE, adding a mustache to a Mona Lisa doesn't make it copyrightable by whoever added the mustache; you must substantially later the work itself.

So the performance of a game doesn't substantially alter the game, and wouldn't make it a derivative work without authorization from the copyright owner itself.

Bleh. It just sounds like there's no good way to fix it other than just not bothering to do them. Or to omit Nintendo games from the schedule and leave a note that "This time slot intentionally left blank due to demands from Nintendo" or some other passive aggressive text.

We just need better Copyright laws... and it starts with "Guess what? You just SOLD something to someone. That means you can't control everything they do with it. So sorry. Go pound sand."

I'm getting so tired of customers having fewer and fewer rights with the stuff they paid good money for.

But copyright law does allow you to control what someone does with something in public. That's the problem.

Trying to control recordings and broadcasts of a person playing a game are a lot like Yamaha claiming the own a song I recorded because the song uses a synthesizer (with Copyrighted samples) to make all the sounds.

Yamaha most likely could shut you down, if they didn't specifically license you to use their samples however you please. It's only by their grace you can freely make music with their artists' samples.

Yeah, I can just see Yamaha's lawyer arguing that in front of the judge: "Yes, your honor, it's a musical instrument. No your honor, my client doesn't actually want their customers to use it to perform musical works in public."

At some point, you give up some rights when you publish a work. One of those rights, IMO, is the right to control what users do with their performance in a video game that they've legally acquired.

However, when you film and edit the people playing the game (including the actual players, not just the gameplay video), and you cut back and forth between the players and the game itself, and you add in commentary of what's going on... at some point, the broadcast of the tourney becomes a new, unique piece of work.

To follow your example: I can't photograph a painting in a museum, then sell my photograph. However, if I recorded my kid performing a piece of music or perhaps giving a speech, and the painting happened to be in the background, there may an argument that the artist can't prevent me from broadcasting that recording.

One of the problems with fair use is that it is nebulous; in some cases, judges will give different verdicts even when the types of use are nearly the same. This is one of those cases that may be legitimate fair use, but since nobody wants to antagonize the 800 pound gorilla, the tournament runners aren't going to fight it.

We just need better Copyright laws... and it starts with "Guess what? You just SOLD something to someone. That means you can't control everything they do with it. So sorry. Go pound sand."

I'm getting so tired of customers having fewer and fewer rights with the stuff they paid good money for.

This is a long-standing principle called first sale. Unfortunately, most EULA's explicitly disclaim it.

The real question is whether or not that disclaimer has any effect.

Unfortunately, clickwrap and its brethren have been upheld in court already. I still disagree, mostly on the principle that a contract (which an EULA is) should be an agreement between equals, subject to negotiation - not something that's shoved on you with no input or say as to the terms.

We just need better Copyright laws... and it starts with "Guess what? You just SOLD something to someone. That means you can't control everything they do with it. So sorry. Go pound sand."

I'm getting so tired of customers having fewer and fewer rights with the stuff they paid good money for.

This is a long-standing principle called first sale. Unfortunately, most EULA's explicitly disclaim it.

The real question is whether or not that disclaimer has any effect.

I've been tempted to put a page on my website somewhere that lists my personal customer agreement. Tie it to my email address and see how they like that.

Something like, "By allowing me to create an account with email@email.com, you hereby waive all of your EULA's for me."

Seems just as reasonable, or lack there of.

Here's another one. Come up with some crazy waiver and put it on a T-Shirt. That way, the store that sold it to you has the ability to read it like you do their little signs before they sell it to you. Something like "By selling me this software, you agree that you are the one who sold it to me and I am not bound by any of your vendors EULA's"

I'm sure someone could come up with something better but I like the idea.

We just need better Copyright laws... and it starts with "Guess what? You just SOLD something to someone. That means you can't control everything they do with it. So sorry. Go pound sand."

I'm getting so tired of customers having fewer and fewer rights with the stuff they paid good money for.

This is a long-standing principle called first sale. Unfortunately, most EULA's explicitly disclaim it.

The real question is whether or not that disclaimer has any effect.

I've been tempted to put a page on my website somewhere that lists my personal customer agreement. Tie it to my email address and see how they like that.

Something like, "By allowing me to create an account with email@email.com, you hereby waive all of your EULA's for me."

Seems just as reasonable, or lack there of.

Here's another one. Come up with some crazy waiver and put it on a T-Shirt. That way, the store that sold it to you has the ability to read it like you do their little signs before they sell it to you. Something like "By selling me this software, you agree that you are the one who sold it to me and I am not bound by any of your vendors EULA's"

I'm sure someone could come up with something better but I like the idea.

What's interesting is that MLG used to host Super Smash Bros Melee tournaments regularly around 2005-2006. It was a very popular game in the competitive scene at the time, though probably second place to Halo 2 within MLG. Not sure what changed with Brawl - Nintendo must have wanted some money and MLG didn't think it was worth it.

I'm glad to see an article bringing light to the issue of heavy handed copyright enforcement / rent seeking by publishers. I can only echo the previous comments saying that these are clearly derivative works. People are watching these streams to be entertained by the expertise of the players, and the gameplay is unique every time.

There has been a wide range of responses by publishers too. For example, in the past MLG expected publishers / console makers to actually contribute money to have their game featured in tournaments if it was doubtful they're turn a profit on it, which Sony did for CoD Blops on the PS3. Bungie and 343 have also been very supportive of Halo being played in competitive tournaments. Quake's tournament history is legendary and I believe Carmack usually attends QuakeCon.

I think the answer here is to define the playing of a video game as a new work.

Playing a video game requires the user playing the game to exercise skills and to create a new expression of the content that did not exist on the recorded media. Specifically, the player's actions (and the player character's corresponding actions on the screen) are completely the player's own performance. Therefore, playing the game is actually the creation of a new, derivative work.

Trying to control recordings and broadcasts of a person playing a game are a lot like Yamaha claiming the own a song I recorded because the song uses a synthesizer (with Copyrighted samples) to make all the sounds.

It's the same thing: like my song is a new work, which I legally own the Copyright to, playing a video game is a derivative work that is owned by the player, not by Nintendo or EA or whomever created the game.

Should the tournament broadcast the cut scenes? No. But I'm betting you could make a case that the gameplay itself could be fair use.

Your playing of a video game would indeed create a derivative work to which you would own the copyright, but that wouldn't extinguish the underlying copyright on the game. You could prevent others from broadcasting your game play, but you could not broadcast it yourself without the permission of the underlying copyright holder. In other words, your work would be subject to two copyrights: your own and the original work's creator's copyright. You could try to claim fair use of the underlying copyright if your work could be construed as criticism or commentary on the work, but that's not a terribly reasonable claim in this case.

More strictly, a copyright is the right to exclude others from the use of your work. It does not guarantee you the right to use your own work.

First off, I agree with the other posters that it's moronic that playing a competitive game counts as a derivative work of the game. People watch tournaments not to see the game be rendered in all its glory but to see people playing. Thus people playing is the dominant aspect of the work, and so it should be an original work.

As for EULAs, I have a policy of not licensing software. The only software I buy is indie software that doesn't impose licensing restrictions. (I'm fine with licenses that expand your rights, like the GPL.) I think it's important to put your money where your mouth is and not support companies that put unnecessary restrictions on usage.